Parties are bound by their pleadings, pleadings are sacrosanct. Evidence contrary or at variance to what is contained in the pleadings goes to no issue –so it is a nullity.

During the case analysis, you analyse the strengths and weaknesses.

When preparing the theory of your case – you have to look at the entire case and find the thread that runs across every element of the action.

A good theory of the case should have the factual theory and legal theory joined together.

S 84 EA – electronic / computer-generated evidence.

 

Nature of trials/system of adjudication in Nigeria

• Adversary
• Non-inquisitorial
• Not investigative
• Judge-passive role
• Counsel or unrepresented party – active duty to adduce evidence
• OSUDE V AZODO [2017]

 

Case analysis /theory/ trial plan

1. After an interview with a client, counsel analyses the facts and law relating to his case, for evaluation of the strength and drawbacks of his clients case
2. He identifies the evidence to prove the ingredients/elements of the cause of action.

Ethical issues – not allowed to pay advertisement for witness

 

Case theory

1. It refers to the party’s version or line of argument of the case. You don’t have to repeat the whole story again, it is just your story.

It is the thread that runs through the case, which offers explanation of or accounts for the facts and circumstances of the case. It is pivotal to the successful laying out of the case canvassed by a party to litigation.

It is at this stage, you consider the arguments of the other party and also you sketch out the address that you willgive at the end of the case.

 

Evidence

1. All legal materials and means used to establish or disprove the existence of facts.
2. The evidence act recognizes
3. Oral
4. Real
5. Documentary, including computer generated evidence

 

Function of a trial

It allows the facts in a case to be :

1. Proved(courts belief in the existence or probable existence of fact)
2. Disproved, (courts belief in the non-existence or the probable non-existence of the fact)

Not proved: neither proved nor disproved.

S121 EA

 

Facts that may be proved: Admissibility of facts

1. Facts in issue and
2. Facts relevant to facts in issue

These may be proved except such facts are:

1. Too remote to be material
2. Prevented from being proved by the provision of any law in force e.g. Hearsayevidence, ss37-38 E.A; Opinionevidence s.67 EA; similar fact evidence s.12 EA; character evidence, s 77 EA.

S.1 EA. S 1(b) includes the 4 exclusionary rules of evidence.

 

Relevant facts

Any fact declared to be relevant in the act or by necessary implication.

Relevant facts:

1. Facts generally relevant, s1-19EA
2. Facts relevant under special circumstances e.g. s.35, 36 E.A
3. Facts relevant on grounds of credibility, see s223 E.A

 

Facts in issues is defined in s 258 EA- any fact which either by itself or in conjunction with other facts, the existence, non existence, nature or extent of any right, liability, or disability asserted or denied in any suit or proceeding necessarily follows

 

Collateral facts – facts

 

Factors that determine admissibility in civil case

• is the fact pleaded
• is it relevant
• is it in the admissible form

ACB V GWAGWADA

 

ORAL EVIDENCE

Your witness can only give evidence of what he saw, did, heard, or perceived by any other sense. S 126 EA

Hearsay evidence should be avoided, s 37; 38 EA

Order 32 rule 1 (4) Lagos – oral examination of a witness by examination in chief shall be limited to confirming his witness on oath and tendering documents.

1. The witness identifies himself, with his name and address
2. Ask him if he ever made any statement on oath
3. Ask him if he can identify the statement if shown to him
4. Ask him what he wants the court to do with his statement on oath – he can say he wants it to be adopted as his oral evidence .order 32 rule 4 Lagos

After oral evidence in chief, there is the cross examination .

 

Disadvantages of hearsay evidence

• Its not made on oath
• Its unreliable
• You’re substituting stronger evidence for weaker
• Fraud or mistake
• Does not afford the court the opportunity to watch the conduct

 

What is hear say?

An attempt to prove the truthof a fact through a statement (written or oral) made otherwise by a witness in a court proceedings.

Hearsay may take the form of a statement contained in a record, or book or document of proof which is not admissible under the evidence act- if such statement is tendered in proof of the truth of its contents

 S 37 evidence act; SHIVERO V THE STATE; SUBRAMANIAM V PUBLIC PROSECUTOR

 

The distinction between admissible repetition / admissible one –

Subramaniam-  a case where the accused was charged with unlawful possession of weapon  the malayan terrorists threats were allowed to be repeated in court not in proof of the truth of such threats but to show the fact that the threat was ever made – s 126 EA

 

REAL EVIDENCE

S127

Material thing.

1. Inspection by production in court – where such is convenient
2. Visit to the locus –in-quo where the subject matter is immovable

 

Two types of locus in quo

 One is going with witnesses, and then would go back to court to give testimony. This is mere inspection.

 The other is when the court moves there

 

1. Real evidence forms part of the proceedings – CHUKWUOGOR V OBUORA. Locus in quo is part of the evidence and is part of the proceedings, so when counting the day when judgement is meant to be given you have to include it.
2. It cannot be delegated – EVOYOMA V DAREGBA
3. The judge should not substitute the evidence with his own account. He can not substitute the ear with his eyes.

 

DOCUMENTARY EVIDENCE

Definition – s 258 EA

The primary rule is that the document should speak for itself.

A proof of a document should be by production of the document or the secondary evidence, and no oral evidence of a document is allowed as a general rule , s128 ; OZIGI V UBN. Read 128 (a)-(e) , there are about 5 exceptions. You can’t use oral evidence to contradict it 

Also extrinsic evidence

 

Proof of documents

1. Proof of contents
2. Proof of execution.

Documents – public or private .see 102 and 103 EA. Learn how to distinguish public documents from private documents, and how they are proved. Public documents are proven by the original copy or CTC.

Note the conditions for a valid verified copy – see s104 EA

• Thelegal fee must be paid
• There must be a certificate written at the foot stating that it is a certified true copy of that public document
• It shall be dated
• It must be subscribed by the public officer with his name and official title
• it shall be sealed , if that officer is authorised to use a seal but if it not so sealed, it would be stamped

 

Note that such CTC may be produced from the bar even in the absence of the public officer.

Ogbuanyiya v Obi Okudo

Dr NnamdiAzikwe v Minister of western Nigeria – where a public document is sought be proven by another form other than the original copy or CTC, it would not be accepted and such is void.

 

Proof of contents of public document.s 89(e) ; 104; 105 EA

This about how do you get information to the court in the proper way; through what means would you convey information to the court in the proper way

 

Proof of execution – see s 94-100 EA

This is How do you authenticate it , how do you prove ownership s 93 EA

 

Private documents

Proof of contents is generally by primary evidence. Secondary evidence is allowed where the appropriate foundation is established. See s 85-90 EA

S 88 EA talks about the foundation to be laid to give evidence. Nigeria operates the best evidence rule. There should be a notice to produce .However there is an exception to produce where the document itself is a notice e.g. Quit notice

 

Computer –generated evidence

 

Standard of proof

The degree of proof of fact is required in specific cases. In civil cases, the standard of proof is discharged on the balance of probabilities. s.134 EA

 

Two major types of subpoena

Subpoena ducestecum does not require the presence of the person served once

 

Wrongful admission and exclusion of evidence – see s 251 EA

 

Primary evidence – s 86

Secondary evidence – s 87 , read also s 91

Secondary evidence also includes oral evidence where the document itself has been destroyed. S 89 & 90

Also 90 (1) (e)

The book from which entries were made

• Ordinary book of bank
• Entry made in usual and ordinary course of business
• The book is in the control and custody of the bank
• The copy has been examine….see the section

 

Proof of execution of public documents

Once a CTC is produced, it can be tendered form the bar, provided the conditions for the CTC under s.104 are met. There is no need to call the public official who made the public documents. There is presumption of genuineness in favour of a CTC. Note that such CTC (one valid by complying with criteria with s104) may be produced from the bar even in the absence of the public officer that made the document

Ogbuanyiya v Obi okudo.

 

Private documents.

Proof of contents is generally by primary evidence. Secondary evidence is allowed where the appropriate foundation is established. See s 85-90.

 

Proof of execution see s 94-100 EA

Its only the CTC that you can use as secondary evidence to prove evidence in public document. No other form of secondary evidence is permitted and the CTC must meet the conditions in s 104.

 

S 94(1) e.g. introduction the witness statement on oath/

The purport of s101 is comparing signatures….

 

ADMISSIBILITY OF DOCUMENTS AS PROOF OF FACTS – RULE AGAINST DOCUMENTARY HEARSAY – See s 83(1)- (5) evidence act

1. Generally the maker of the document should have either personal knowledge of the matters dealt with unless the document forms part of a continuous record and the statement is made in the performance of a duty to record. Don’t think what you cant do orally- give as oral evidence on, you can then do by reproducing it as a document, so give it as a documentary evidence. See 125, 126

Another exception is seen in s 83

S83(3) – the two conditions must be present for that section to apply

It is the obligation to establish by evidence the existence of facts alleged in the pleadings. He that asserts proves – s.131 EA

 

Computer generated evidence

See s 258 for the definition. Computer is defined as any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it by calculation, comparison or any other process

For proof see s 84

1. The document which contains the statement was produced by the computer when it was regularly used for storing or processing information pertaining to any regular activity of any individual or corporate body.

See s 84(4) – very key 

S 84(2) talks about the conditions that must be met

The conditions can be reduce into the following:

• The said document was produced by a computer, which was, at the material time in regular use of storing and processing information
• The document was produced by the computer in the ordinary course of business
• That the computer was in good working condition at all material times or to the extent that the computer didn’t properly work it did not affect the production of the document
• See d
• Production of certificate or oral evidence by a person having control of the computer or a person occupying a responsible position of management may be used in proving the above stated fact. See Kubor v Dickson

 

The statement

The rule is that you’re not to call all the witnesses available - s200EA. Only call the probative ones that can support the case. There is no requirement for corroboration. However there are exceptions s 197 – a breach of promise of marriage, in this instance corroboration is needed.

 

Steps/procedures for a case hearing

The gong goes three times,everyone rises, then the judge comes in and bows , everyone bows back and then they sit. The registrar announces the parties. The parties stand to identify themselves when the registrar announces their names. The first witness for the claimant is then called to the witness box.Once a witness is called all other witnesses have to leave the court – ‘out of court, out of sight and out of hearing’-S 212 (however in Nigerian court its mostly suomoto by the court, the parties themselves don’t have to leave).  The witness is asked either swear or affirm. When affirming, “ so help me GOD” is not included, but if its on oath “so help me God” will be included. This is the major difference between affirmation and swearing in. S208 – contains the words for affirmation and swearing in. After that she is to caution the witness, see S 206 – contains the new rule for words of caution. What condition should be satisfied

Can you recognise it if you see it?

 How would you recognise it? The signature is shown as execution

What do you want the court to do with this document? Adopted as my testimony in chief / written statement of oath

The counsel now says - My lord we apply that it be adopted as the evidence in chief.

Note that this document isn’t recorded as an exhibit, it is the evidence in chief.

 

Conditions to tender electronic documents

How to tender electronic documents – ask question to show that they have complied with these conditions e.g.

• Where did you get the document?
• For how long has the computer been in use?**

 

Who commences calling evidence?

The general rule is that he that alleges must start to proof

 

Burden and standard of proof

Burden of proof: who calls evidence – s 131 (2) EA

1. The general burden of proof – this is static
2. The evidential burden of proof – this is burden to prove individual or particular evidence in respect of the case, s 136

The burden of proof rest on theparty that substantially  ESEGINE V ONOBRUCHERE , s 132 & 133 EA

Standard of proof is s 134 – balance of probabilities or preponderance of evidence.

General burden of proof or burden on the pleadings. It is dependent on the state of pleadings and the applicable presumptions. This generally determines the party that commences to call evidence – s 133(1) EA; or 30 rule 8 Lagos; order 35 rule 12 FCT

 

SEE s 131 EA

 

However where the commission of a crime by a party to a civil proceedings is directly in issue it must be proved beyond reasonable doubt. – s 135(1) EA. This is common in election petition matter

Note s 135EA is only applicable if:

-

- NWANKERE V ADEWUNMI

 

COMPETENCE AND COMPELLABILITY OF WITNESSES

Competence – s 175 EA

1. It refers to the ability of a witness to give evidence
2. The general rule is that every body is competent to give testimony except the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by reason of tender years, extreme old age, disease, whether of body or mind, or nay other cause of the same kind.

 

A dumb person gives oral evidence by signs or writing -s.176 E.A. parties and their spouses are competent witnesses in civil cases. – s 178 EA

ELEBANJO V TIJANI – a lawyer is a competent witness in any case in which he acts professionally, except where he is caught by any of the attenuating/ disqualifying factors in s 175 EA. However professionally don’t do it as it may create conflict and also cross.

 

Compellability

See order 33 r12 Lagos

 

Two major types of SUB-POENA

• SUBPOENA AD TESTIFICANDUM – to compel witness to be present in court to give evidence. see order 38, r 34 & FORMS 86 and 40 (FCT , FORM 27 Lagos
• SUBPOENA DUCES TECUM- s 218 EA . Here you indicate the nature of the document that you want to use. How do you introduce a subpoena’d witness? What is your name and what do you for a living?, Why are you in court? Do you have that subpoena with you? – Upon receiving it can be tendered to the court. Depending on the type, counsel then says do you have those documents with you? , the documents are then tendered to the court . Such witnesses are not open to cross examination,they are meant to just deliver those documents. s 209 EA so if the opposing counsel decides to cross examine them, you should object on such basis

 

Persons that cannot be compelled

• The president / Vice President /Governor/ Deputy Governor

s 308 constitution. But see Global excellence comm ltd v duke – they can sue Or maintain actions

• Diplomats – the diplomatic immunities &privileges act 1962. Note the immunities can be waived. No Nigerian member of official or domestic staff of foreign/ common wealth envoys enjoys personal immunities, s 10 DIPA. Noah v British high commissioner – the case held that you cannot compel a british diplomat to come to court
• Legal practitioner – s 192 EA.

ELEBANJO V TIJANI

• Bankers
• Non – compellability of spouses to disclose communication made during the course of marriage s 182 EA
• Please tell the court your name, address and occupation - you don’t have to break them down into three questions.
• Do you know the claimant/ defendant

 

You can ask any question in cross-examination but it must have a purpose – to discredit the witness.

 

IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS STATE DIVISION

HOLDEN AT LAGOS

SUIT NO:

CHIEF JOSEPH LAMBE…………………………………….CLAIMANT

AND

ROYAL ESTATES LIMITED………………………………..DEFENDANT

 

WITNESS STATEMENT ON OATH OF CHIEF JOSEPH LAMBE

I Chief Joseph Lambe, Christian, Engineer, male Nigerian citizen of 12 Lambe Close Ikoyi, do make on oath and state as follows:

1. I am the claimant in this case and by virtue of that, I amconversant with the facts contained herein
2. I am the holder of the statutory right of occupancy in respect of the land at Lambe Close Ikoyi, Lagos by virtue of a Federal Certificate of Occupancy No. FCO/111/2010
3. I entered into negotiations with Royal Estate Limited to sell the property for the agreed purchase price of N250,000,000 (two hundred million naira)
4. A contract of sale was executed by both parties on 1^st June 2014 containing the following clauses:
5. The purchaser shall pay to the seller the sum of N25m being 10% of the purchase price as deposit upon the execution of this contract.
6. Upon the execution of this contract, the seller shall hand over possession of the land to the purchaser and the purchaser shall be at liberty to commence construction work on the land immediately.

• Balance of the agreed purchase price shall be paid on or before 1^st November 2014

5. After payment of the deposit and execution of the contract of sale, the purchaser moved into possession and started construction of a 10 story residential apartments on the land but did not pay the balance of purchase price as agreed.
6. On the 1^stDecember, 2014, I wrote a letter to the purchaser demanding that the purchaser pay the balance of purchase price or give up possession of the land.
7. I wrote a similar letter on the 15^th of December, 2014
8. On the 22^nd December 2014, I wrote another letter terminating the contract of sale and demanding that the purchaser vacate the land within 7 days of service of the letter.
9. That I depose to this witness statement on oath in good faith conscientiously believing same to be true and in accordance with the Oaths law of Lagos state

…………………………………

DEPONENT  

Sworn to at Lagos state High court Registry

this………day of ……..20……….

 

BEFORE ME

………………………………

COMMISSIONER FOR OATHS